Originally heard in the Court of Common Pleas of Clarion County.

This was an ejectment brought by James McCray against John Clark and Robert H. Patton, for a tract of land containing one hundred and seven acres, situated in Highland township, Clarion county.

On the trial, it was admitted that previous to 1861 the title to the land in dispute was in Columbus Reed.

The plaintiff claimed by virtue of articles of agreement under seal dated the 29th of December 1864, acknowledged the 25th of December 1871, and recorded December 26th 1871, wherein Columbus Reed sold and conveyed the land in question to plaintiff for $600, receipt of which was acknowledged in the agreement.  Plaintiff, it appeared, never took actual possession of the land himself or by tenant.

Defendants objected, and the court ruled: "There is no allegation that McCray was in possession of the land; he did not put his title upon record until the 26th of December 1871.  We do not see how the evidence, if admitted, would invalidate as to him either the lien of or sale under the judgment.  The objection is sustained, and evidence excluded."

The verdict was for the defendants.

Judgment reversed, and a venire facias de novo awarded.

The defendant Clark claimed that, on the 4th of May 1861, he entered judgment in the Court of Common Pleas of Clarion county against Columbus Reed for the sum of $346.74; that on the 2d of March 1866 he issued a scire facias to revive this judgment against Reed, which scire facias it appeared named no one as terretenant and contained no directions to the sheriff to serve on parties in possession, nor was McCray served with the writ.  On the back of the writ Reed accepted service, and on the 10th of May 1866 judgment was taken in default of an appearance.

On the 9th of March 1868 a writ of fieri facias issued, and the property was levied on, condemned and sold to Clark for $145, to whom the sheriff acknowledged and
delivered a deed on the 10th of December 1868.

In rebuttal the plaintiff proposed to prove by Columbus Reed that at the time John Clark issued his scire facias against Columbus Reed to revive his judgment, and at the time Reed accepted service of the writ, he admitted that he had notice of McCray's title, and that he was content to revive against Reed's other land alone, and having done so, the knowledge on his part of McCray's title is equivalent to the recording of the deed, and Clark and those under him cannot be innocent purchasers.

The defendants contended that this sale divested all title and interest of McCray in the land.

Originally heard in the Court of Common Pleas of Clarion County.

Assumpsit by Patrick Dorsey against William M. Abrams and others, trading as the Citizens' Saving Bank, on a check, a copy of which will be found in the opinion of this court.

Demand was made for the payment of this check on the 10th of January 1876, which was refused. At the trial , there was evidence to show that the certificate of Mr. Foster was a forgery, and also that by his subsequent acts and declarations, he had recognised and confirmed his certificate.

It was also in evidence that Foster had, at other times, certified checks; but it did not appear that they were other than ordinary checks received in the usual course of
business.

It was admitted that when McCullough drew the check he had no funds in the bank, and no right to draw.

Among the points submitted by plaintiff were two which embraced substantially these propositions:  First, that if Foster ratified the endorsement of the check, such act would amount to an acceptance of the check, and plaintiff is entitled to recover; and, second, if the jury believe, from the evidence in the case, that the managers of the bank had knowledge that Foster, their cashier, was certifying checks for their customers to give such customers credit in the oil market, and did not promptly repudiate such act, they would be bound by such certificate, whether the act was within the scope of the cashier's authority or not.

Both of these points the court refused.

"No. East Brady, Pa., Dec. 30, 1875.
Citizens' Savings Bank, East Brady, Pa., pay to P. Dorsey, Esq., or order, two thousand dollars.
To hold as collateral for 1000 P. T. oil, pipage paid to Jan. 4, 1876.
Good when properly endorsed.
A. W. McCullough.
J. Y. Foster.
Endorsement on back of check, P. Dorsey."

The J. Y. Foster who certified the check is the cashier of the defendants' bank.  It was alleged upon the trial, and there is evidence tending to prove, that the certificate of Mr. Foster was a forgery.  The plaintiff contended that if a forgery, Mr. Foster had recognised and confirmed it by his subsequent acts and declarations.

Originally heard in the Court of Common Pleas of Clarion County.

Debt by Rebecca Kerr, formerly Guthrie, against James W. Guthrie, for a legacy under the provisions of an alleged will of her father, Alexander Guthrie, Sr.

The defendant pleaded nil debet, payment with leave, &c.

A paper was taken from the register's office in 1852 which purported to be a will, but about the probate of which there was grave doubt.  The subscribing witnesses had testified to its execution and their affidavit was endorsed thereon by the register.  It was, however, neither filed nor recorded and was taken from the register's office.  Twenty-four years thereafter it was directed to be filed and recorded by a judge of the Common Pleas.  Held, that this was an undue exercise of judicial discretion.

The verdict was for the plaintiff.  The defendant assigned for error, inter alia, the admission in evidence by the court of the paper purporting to be the last will of Alexander Guthrie, Sr., and the entry of judgment for plaintiff upon the point reserved, which was "that under the pleadings and evidence the plaintiffs cannot recover."

Judgment reversed.

The alleged will of Alexander Guthrie was not proved at the trial.  Was it ever previously proved, so as to be evidence?  The certificate of the present register shows that no letters have ever been issued upon it, and that he has never judicially acted upon the question of its probate.  In pursuance of a verbal order of the Court of Common Pleas, upon a former trial of this case, directing the paper to be filed and recorded, he filed and recorded it.

Articles of agreement between Alexander Guthrie, senior, and James W. Guthrie, the defendant below, were executed on the 26th of January 1844, in which the terms of a former agreement made between the same parties on the 16th of May 1840, were recited, explained and construed.  Alexander Guthrie, senior, transferred to the defendant, who was his son, all his real and personal estate, except certain household furniture and cattle then in the possession of himself, his daughter Rebecca, and his son Isaiah.  In the first agreement, the consideration was stated to be $5750, and the further sum of $500, if that should be required by the father to be paid.  The revised agreement fixed the consideration at the sum of $6250, which was not to bear interest until after the expiration of one year from the father's death.  This was followed by stipulations in these words:  "And it is further understood between the parties that any money, or its equivalent, that the said James W. Guthrie may heretofore have paid, or may hereafter pay to any of my children, for which he will produce their receipts, are to be taken as a credit on the agreement hereinbefore recited, provided said payments shall not exceed the amount given and bequeathed to them respectively by my last will and testament. * * * And it is hereby agreed that the said James W. Guthrie will, in a decent, comfortable and respectable manner, support and maintain his said father, Alexander Guthrie, during his lifetime."

On the trial, a paper, purporting to be the last will of Alexander Guthrie, senior, was offered and admitted in evidence.  It was dated on the 5th of January 1846.  The subscribing witnesses, on the 25th of March 1852, testified to its execution, and their affidavit was endorsed upon it by the register.  The same day the persons named in it as executors endorsed a renunciation of their right to letters testamentary.  The paper was then taken from the office, and was first produced afterwards in court by the plaintiff on the 2d of February 1876.  Continuing the cause, which was then on trial, a verbal order to the register to file and record the alleged will was made by the court.  The view which is entertained of the rights of these parties will make a final disposition of this litigation, and any extended inquiry into the question raised by the exception to the admission of this paper would be superfluous, but it may be said that there is grave doubt whether any act was done either by the register of 1852 or by the register of 1876, that amounted to a probate of this will. If it had been expressly declared to be proved -- if, without that, it had been recorded -- if letters testamentary or letters of administration cum testamento annexo had been issued -- or, perhaps, if it had been simply filed, an adjudication by the officer would be presumed. Here, nothing was done in 1852 except to administer and endorse the oath of the subscribing witnesses. The paper was taken from the office, while the 17th section of the Act of the 15th of March 1832, expressly declares that all wills, after probate, shall remain in the register's office, "except when required to be had before some higher tribunal, by certiorari or otherwise, and if removed for such cause, shall be returned in due course to the office to which they belong."  In 1876, twenty-four years later, the filing and recording were directed by a judge of the Common Pleas.  This was the exercise of a judicial discretion certainly, but it was not the judicial discretion which the law directs to be exercised in the admission of a will to probate.

In the instrument executed by him, Mr. Guthrie bequeathed to his daughter Rebecca, the plaintiff below, $2300, the horned cattle in his possession, and his household and kitchen furniture.  Legacies of $800 each were given to two of his daughters, and one of $850 to his son, William Guthrie.  $800 were bequeathed to his executors, $400 of which were directed to be divided amongst certain specified religious institutions.  Any balance that should remain after payment of the legacies, was given to his daughter Rebecca.  Asserting a personal right to recover from the defendant under the terms of the agreement of the 26th of January 1844, and the provisions of the alleged will of her father, the plaintiff brought this suit for her legacy of $ 2300 on the 15th of July 1872.  In the charge of the court the following instructions were given to the jury:
"The consideration mentioned in the article is $6250, to be paid by J. W. Guthrie; $200 of this was paid when the article was signed, leaving $6050.  This sum, less the debts and expenses of administration, would constitute the fund out of which the legacies were to be paid pro rata. Whether the money referred to in these receipts and orders was paid, and whether it was paid outside of the maintenance and support of Alexander Guthrie, and what part thereof, are questions to be determined by the jury."  The verdict was for the plaintiff for $3759.82.

It is to be observed that neither the name of the plaintiff nor the name of any other beneficiary was mentioned in the original and recited agreement of 1840, or in the revised agreement of 1844.

At the time of Mr. Guthrie's death the situation of the fund for the payment of legacies was such as to require the adjustment of questions with which a jury in the trial of a common-law action are unfit to deal.  After the receipt by Mr. Guthrie of $200 at the date of the revised agreement, $6050 of the consideration remained unpaid.  The pecuniary legacies bequeathed amounted to $5550.  But the receipts admitted in evidence proved the payment of $2515.86 by the defendant to his father in his lifetime.  Allowance was claimed for other sums, but they were rejected, and are of no present importance.  Of the fund to meet $5550 of legacies, there remained in the defendant's hands only $3714.14.  In this sum all the legatees were interested, and, in the disposition of it, all had the right to be heard.  An attempt was made by the jury to apportion the plaintiff's share to her, and possibly approximate accuracy was reached.  Her proportion of the $3714.14 was something like $1450, and the jury seem to have fixed something less than $1600 as the principal sum on which interest was cast to produce the verdict.  Still, the attempt to marshal and distribute the assets of a dead man's estate through common law forms is always awkward, cumbrous and unsafe.  And the employment of those forms in the settlement of an estate like this was equally novel and inappropriate.  Each of the other legatees could have a separate action if the action of one could be maintained.  The same questions would arise in each trial, and the jury in each case would erect an equitable standard of adjustment and apportionment for themselves.  The defendant would be harassed by oppressive litigation, and, at the same time, be deprived of the safeguards against haste and prejudice which the patient, careful and deliberate investigation of the Orphans' Court provides for him.

Originally heard in the Court of Common Pleas of Clarion County.

Debt by John Gruber against the First National Bank of Clarion.

This action was brought by the plaintiff on the 4th of March 1876, to recover from the defendant double the amount of certain payments of usurious interest made to the bank within two years previous to the inception of the action, and also the excess above legal interest on certain other payments of usurious interest made more than two years previous to the commencement of the action, and within six years of same.  The declaration filed in the case contained thirteen counts, the first ten being special ones for double the amount of payments of usurious interest made within two years of the commencement of the action; the other three were common counts for money received, money paid, and for an account stated, and were intended to cover excess of legal interest paid more than two and less than six years prior to the bringing of suit.

Defendant pleaded the general issue, followed by a second and third plea to the jurisdiction. The plaintiff joined issue on the first plea, and on the other two demurred to the jurisdiction. The court sustained the demurrer, and without further pleas the cause came on for trial.

Judgment reversed and a venire facias de novo awarded.

Originally heard in the Court of Common Pleas of Clarion County.

Debt by John Gruber against the First National Bank of Clarion.

The material facts are set forth in the report of the preceding case of Gruber v. The First National Bank of Clarion, which was a writ of error taken by the plaintiff to the same judgment.  The questions considered and disposed of on the present writ are stated in the opinions of this court.

Judgment reversed and a venire facias de novo awarded.

Originally heard in the Court of Common Pleas of Clarion County.

Debt by John Gruber against the First National Bank of Clarion.

This suit was brought to recover from the defendant double the amount of all payments alleged to have been made by the plaintiff to the defendant as usurious interest, within two years previous to the inception of the action, and also all excess above six per cent. alleged to have been paid during the additional period of four years prior to the 4th of March 1874.  The plaintiff declared specially for the double interest, and added the common counts on which to recover the excess.  On the 24th of March 1879, defendant presented a petition to remove the same to the Circuit Court of the United States, which was refused.

The plaintiff claimed to recover the discount on four different lines of notes; the first notes of John Gruber, the plaintiff, which began on the 29th of March 1870, and were either paid off or embraced on the 7th of January 1872, in note given by John and Henry Gruber, which constituted the second line of notes, and this line was continued by renewals until the 12th of June 1875, when it was closed by a judgment on the last of the notes, being $2238, and the judgment was not paid until the 28th of August 1876, nearly five months after the bringing of this suit, and was then paid principally out of the proceeds of a sheriff's sale of Henry Gruber's property.  The third line of notes were those of John Gruber, Henry Gruber and Samuel Newell, which began on the 3d of October 1873, and after a succession of renewals, on the 27th of November 1875, was closed by a judgment in favor of the bank of $348.30, which was not paid until the 28th of August 1876, and was then paid out of proceeds of sale of real estate principally of Henry Gruber.  The fourth line of notes were those of Cook & Co. and John Gruber, endorsed by R. Rulofson, which Rulofson had discounted at the bank, but charged the discount against John Gruber on a settlement Rulofson had with Gruber. On these several lines of notes, which constituted the greater part of the plaintiff's claim, discount was charged generally at the rate of twelve per cent. Sometimes the discount was paid at the time of the purchase of the notes, sometimes it was reserved out of the amount given for the notes, and at other times it was added into the notes, and went along the line of successive renewals, till they were closed in judgments or paid.

The judgment is reversed and a new venire awarded.

Excluding the notes of Cook & Co. and John Gruber, that Rulofson had discounted, the whole amount of discount actually paid on the several notes claimed by plaintiff between the 4th of March 1874, and the 4th of March 1876, was $217.70; the whole amount added into or reserved out of notes during the same period, was $62.50; the whole amount of discounts paid between the 4th of March 1870, and the 4th of March 1874, was $1064.72; and the whole amount added in or reserved out during the same period, was $264.28, and the greater part of all this was on the joint notes of John and Henry Gruber.  The plaintiff in this case claimed this last line of notes was discounted for his benefit, and Henry Gruber claimed that the discount was paid by him, and had brought suit for the same discounts, which was offered to be proven by a certified copy of the record of the Circuit Court of the United States, in the case of Henry Gruber against the same defendant, but the testimony was excluded by the court.

The evidence in this case establishes the fact that John Gruber was the beneficial owner of the notes produced on the trial, and that for him alone were they discounted by the bank.  It hence follows that any claim that Henry Gruber might have set up to the penalty, growing out of the illegal discounts, was without foundation, and was properly disregarded.

Originally heard in the Court of Common Pleas of Clarion County.

Assumpsit by H. Wetter, to use of W. C. Howe, against J. B. Watson and C. C. Brosius, on the following promissory note:

"$1875. Clarion, Pa., June 18th 1877.

Six months after date we promise to pay to the order of H. Wetter $1875, at the First National Bank of Clarion, Pa., without defalcation for value received.  If not paid at maturity waiving exemption, inquisition appeals, without stay of execution, and with five per cent attorney's commission for collection.
fl 7393. J. B. Watson,
Due December 18/21. C. C. Brosius."

On the 2d of August 1878, the plaintiff's attorneys entered a compulsory rule of reference under the Act of 16th June 1836, and on the 10th of September 1878, the
arbitrators filed their award, awarding to the plaintiff $2054.35, from which award the defendants took an appeal.  On the 11th of November 1878, plaintiff moved the court to strike off and quash the appeal from the award of arbitrators, for the reason that "the right of appeal was waived by defendants in note on which award was made, a copy of said note being filed along with declaration, according to rule of court, which has not been controverted by affidavit."

The court granted a rule to show cause, and after argument struck off the appeal, which was the error assigned by defendants, who took this writ.

Order affirmed.

Originally heard in the Court of Common Pleas of Clarion County.

Trespass vi et armis, de bonis asportatis, by Jacob Black, against Philip Gloss, Joseph Hoofnagle, John H. Walker and John Young.

On the 10th of May 1877, R. J. Dahle obtained a judgment, before Justice Adam Black, against R. M. Shaw, and soon after issued an execution to John Young, a constable, who, by virtue thereof, regularly levied upon and sold, as the property of Shaw, certain rig timbers, about thirty-two pieces, to Philip Gloss, for $40.  Gloss immediately gave the property in charge of a man he had hired to watch it, and the same day, or the next, began to have it hauled to his home, which he accomplished within a few days.  No notice of any adverse claim was given at the constable's sale, nor did Gloss have any knowledge of any such claim till after he had hauled a considerable part of his purchase away.  Hoofnagle and Walker were Gloss's hands who did the hauling; John Young was the constable who sold the property.  After he had delivered the timber to Gloss he had nothing to do with it.  On part of Black, the plaintiff, it was claimed that he had bought the timber of Rockwell and McCool on the 16th of April 1877, who, he claimed, had owned it.  On part of defendant it was alleged the property had been cut off Shaw's land, taken out and hauled by himself and Peters, Rockwell and McCool, as his employees, and that the property belonged to Shaw at the time of the levy.  At the time of the levy and sale of the timber by the constable, it was lying at the side of the public road where it had been dropped as it had been hauled out of the woods -- the public road at that place running over lands of Black, the plaintiff.  The constable's sale of the timber was made at the place where it was lying, the constable standing on the timber at the time, and immediately after the sale he delivered possession to Gloss, the purchaser, and gave him a bill of sale and receipt for the money.

Judgment reversed, and venire facias de novo awarded.

Originally heard in the Court of Quarter Sessions of Clarion County.

This was a petition by the directors of the poor of Blair county for a rule on the overseers of the poor of Clarion borough, to show cause why the latter should not pay the costs and expenses incurred by said county of Blair in removing George W. Conard, a pauper, to the said borough of Clarion, and for his relief.  The court discharged the rule on the ground that, as the order of removal was unappealed from, and the pauper had been accepted, there could be no recovery.

A pauper having a legal settlement in the borough of Clarion became a charge on the county of Blair.  He was duly removed to and accepted by the borough of Clarion, and the order of removal was served on the overseers of the poor of said borough, and no appeal was taken therefrom.  A bill of expenses incurred by the county of Blair for the relief and removal of said pauper was duly proved and demand for its payment made upon the overseers of said borough.  They denied their liability and
refused to pay, and a rule to show cause why they should not pay granted by the Quarter Sessions of Clarion county was, after hearing, discharged.

Decree reversed, and now rule reinstated and a procedendo awarded.

Originally heard in the Court of Common Pleas of Clarion County.

This was an action of replevin brought by Thomas Dougherty against James Haggerty on the 14th of April 1877, for 120,000 feet of hemlock lumber.  About 80,000 feet worth from $8 to $10 per 1000, of the property was replevined at the mouth of the Clarion river, and retained by the defendant, Haggerty, upon giving property bond.

The owners of the tract containing this 439 acres alluded to in the above contract as that from which the lumber was to be taken, were S. T. Dougherty, who owned one undivided half, James McClelland one-fourth, and C. C. Faries and the heirs of one Graphies jointly the other fourth.  S. T. Dougherty was the owner of at least one-fourth of the mill and fourteen-acre tract.  S. T. Dougherty, under his contract in the fall of 1876, went on and cut logs on the 439-acre tract, and run them to the saw-mill on the fourteen-acre tract, where they were manufactured by a sawyer in his employ to whom he furnished the sizes.  After the lumber was manufactured it was piled up at the mill.   After they had been thus sawed and piled ready to raft an execution was issued on a judgment of Powers v. S. T. Dougherty, S. T. Reynolds and James McClelland, and the boards were levied on and sold to James Haggerty, defendant, who employed hands, rafted in and run them to the mouth of the Clarion river, where they were replevined by the plaintiff.

Verdict for defendant, and after judgment plaintiff took this writ, and alleged that the court erred.  Judgment affirmed.

In the year 1874, James A. McClelland, Samuel T. Reynolds and S. T. Dougherty, became the owners, by purchase and conveyance, from L. F. Flowers and wife, of the undivided three-fourths of 439 acres of land, being part of Holland warrant 2.775, in Spring Creek township, Elk county, Pennsylvania.  It appeared from an article of agreement between S. T. Reynolds and S. T. Dougherty, dated the 16th of January 1875, given in evidence on trial, that said Dougherty and Reynolds had been engaged as co-partners, under the name and style of Dougherty & Reynolds, in anufacturing lumber.  On that date, S. T. Reynolds sold and transferred by said articles of agreement, to S. T. Dougherty, all his interest in the partnership assets; also his interest in the 439-acre tract.  And also a one-fourth interest in a 14-acre tract, on which was erected a saw-mill and other buildings, purchased March 3d 1874, by article of agreement from L. F. and F. M. Powers.

On the 1st of August 1876, an agreement was made between S. T. Dougherty and his father, the plaintiff in error, as follows:  "An article of agreement made by and between S. T. Dougherty, of Elk county, Pa., and Thomas Dougherty, of Clarion county, Pa., witnesseth, that the said S. T. Dougherty sells and delivers to the said Thomas Dougherty, one hundred thousand (100,000) feet, more or less, of hemlock lumber, board measure, at the rate of fifty cents per 1000 feet, board measure.  The said hemlock is to be taken off a lot of land lying in Spring Creek township, Elk county, Pa., and bought of L. Powers by S. T. Dougherty and James McClelland.  And the said lumber is to be cut and removed just as soon as it can be; and in consideration and connection with the above, S. T. Dougherty agrees to cut, haul, saw, raft and run to market the hemlock timber at the rate of $5 per 1000, to be paid as the work progresses, and said lumber to be run to any point on the Allegheny to Pittsburgh, Pa."

Endorsed on this contract were receipts by S. T. Dougherty for $50, on the 1st of August 1876, and of $400, on the 14th of October 1876.